[2023] KEHC 24381 (KLR)

Services & another v Kyalo & another (Suing and on Behalf of the Estate of Richard Kyalo Mutua) (Civil Appeal E071 of 2021) [2023] KEHC 24381 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24381 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E071 of 2021

MW Muigai, J

October 24, 2023

Between

Joseline Shuttle Services

1st Appellant

Josiah Mumo

2nd Appellant

and

Ruth Mwelu Kyalo

1st Respondent

Martha Ndila Mutua

2nd Respondent

Suing and on Behalf of the Estate of Richard Kyalo Mutua

(Being an appeal from the judgment and decree of the Hon C.OCHARO (RM) delivered on 6. 05. 2021 MACHAKOS CMCC NO. 927 OF 2013)

Judgment

Trial Court Record Plaint 1. Vide a Plaint filed on 20. 09. 2013, it was averred that the cause of action arose on 24. 03. 2013. The Plaintiff was lawfully travelling in Motor cycle registration number KMCZ 939B along Machakos-Kitui road when at Machakos Girls’ School area, the motor vehicle KBH 135T negligently managed, controlled and driven by the 2nd Defendant’s driver/ servant/ agent veered off its lane onto the lane of motor cycle registration no. KMCZ 939B,hit and knock the said motor cycle KMCZ 939B. As a result, the plaintiff sustained fatal injuries.

2. The plaintiffs averred that prior to the accident, the deceased was a healthy man aged 35 years at the time of his death and was a business man operating a bar and a retail kiosk earning a monthly income of Kshs 15,000 but as a direct result of the accident, he lost his expectation of life and his estate was thereby put to loss and damage.

3. The following orders were sought from the trial court;a.General damages under the Fatal Accidents actb.General damages under the Law Reform actc.Special damagesd.Costs of the suite.Interest

Defence 4. The Defendant’s filed a defence on 08. 10. 2021 denied the contents of the Plaint and averred that any occurrence of the accident was solely and substantially contributed to by the Plaintiff’s own negligence. Further, that if the accident occurred, the same was beyond the control of the Defendants. The court was urged to dismiss the claim.

Hearing 5. At the hearing, the Plaintiff PW1 Ruth Mwelu Kyalo widow of the deceased was the only witness who testified. PW1 obtained limited grant ad litem Exb 1 for deceased’s estate. She relied on the test case 862 of 2013 and produced a copy of the judgment Pw1 Exb 2 and produced Consent for settlement of the test suit Exb 3. The deceased was a Bar Operator and owned his own business Cardinal Club as shown by Pexb 4. PW1 produced Birth certificates of the 2 children Exb 5A & 5B and the deceased’s death certificate of deceased Pex 6. The Plaintiff claimed husband earned 89,000/- but in cross examination confirmed Ksh 15,000/- was pleaded. On dependency, PW1 stated that she, the 2 children and the deceased’s mother depended on the deceased for food, school fees and all the other essential needs.

6. Upon cross examination, she stated that she too had a source of income so she helped the family and that her mother in law also received help from her other children.

7. The Defendants did not call any witness.

Trial Court Judgment 8. On liability, the Trial Court relied the issue of liability determined in the test case of CMCC No 862 of 2013 Julius Mwaki Muchoki vs Joseline Shuttle Services & Transporters where the Defendant was found 100% liable.

9. As regards special damages, the court found that Kshs 122,500 had been pleaded and proved and was therefore awarded.

10. In conclusion, the court awarded as follows;a.Liability in favor of the Plaintiff against the Defendants at 100%b.General damages for pain and suffering Kshs 10,000/-c.Loss of dependency Kshs 3,000,000/-d.Loss of expectation of life Kshs 200,000/-e.Special Damages Kshs 122,500/-Total Kshs 3,332,500/-f.Costsg.Interest from the date of judgment

The Appeal 11. Dissatisfied by this judgment, the appellants who were the De in the Trial court filed a memorandum of Appeal dated 12. 05. 2021 seeking the following orders;i.The whole judgment of the Trial Court be set aside and the same be assessed afreshii.That this appeal be allowed.iii.The costs of the Appeal and that of the Trial Court be awarded to the Appellants.iv.That such further orders may be made by this Court may deem fit to grant.

12. The same is founded on the grounds that;a.The learned Trial Magistrate erred in law and in fact by disregarding established legal precedent and thereby erroneously arriving at a wrong conclusion on quantum.b.The learned Trial Magistrate erred in law and in fact in not making an award which was within limits of already decided cases of similar nature.c.The learned Trial Magistrate erred in law and in fact in awarding judgment on damages under law reform act of Kshs 210,000 and loss of expectation of life of Kshs 3,000,000 without showing how he arrived at the figure and in total disregard of the submissions of the defendant on the issue of quantum

13. The Appeal was canvassed by way of written submissions.

Submissions 14. The Appellants filed submissions on 15. 5.2023 and indicated that they took issue with quantum. It was submitted that the award of Ksh10,000 for general damages, pain and suffering was adequate since the defendant died on the same day of the accident. On loss of dependency, it was submitted that the Trial magistrate utilized a figure of Kshs 15,000 as the multiplier while there was no proof of such earnings and was grossly inflated. The court was urged to utilize kshs 10,000 which was the amount submitted at the Trial Court. It was submitted that the deceased was not assured of a longer life had the accident not claimed his life and that the multiplier adopted by the trial court did not consider the vagaries and vicissitudes of life. Reliance was placed in the case of Nairobi HCCC No. 4580 of 1987- Christine Shoi & another vs East African Cement Co. Ltd & another. The court was urged to utilize a multiplier of 10 years only.

15. It was submitted that the Trial Court erred when it made a double award by failing to deduct the award under the Law Reform Act and that there cannot be awards under both Acts. The court was urged to consider the case of Dismas Muhami Wainarua vs Sopon Kasirimo Maranta (suing as an administrator and or personal representative of the estate of Partinini Supon [2021] eKLR.

16. As regards to loss of expectation of life, it was submitted that the same was overly exaggerated and the Court was urged to revise it down wards from kshs 200,000 to Kshs 60,000. The Court was urged to consider the findings in the case of Mohamed Abdi Ali v Paul Muturi Mwangi (2019)e KLR Nyeri HCCA No.1of 2017, Caleb Juma Nyabuto v Evance Otieno Magaka & another [2021] eKLR.

17. As regards to dependency ratio, it was submitted that it was not proved on how the said dependants relied on the deceased and to what extent and that dependency was a fact that should be proved by evidence. Reliance was placed in the case of Abdalla Rubeya Hemed vs Kayuma Mvurya & another [2017] eKLR.

18. It was finally submitted that the Honourable Court set aside the judgment of the Trial Court and uphold the Appeal and cost of the Appeal be awarded to the Appellants.

19. The Respondent filed submissions on 6. 3.2023 and stated that the award of damages was adequate. On the issue of loss of expectation of life, It was submitted that the deceased was a healthy, strong young man. He was a businessman who was at the peak of his life before it was suddenly cut short. The award of kshs 200,000 being high as alleged by the defendants was fair and reasonable. Reliance was placed in the case of Jackson Kariuki Ndegwa( suing as the administrator of the estate of Fabius Munga Kariuki v Peter Kungu Mwangi[2016] eKLR

20. Secondly, on the Loss of dependency it was submitted that the deceased was the bread winner supporting his wife, children and mother as was testified in the Trial Court. It was evidenced by the children were still dependants as their birth certificates were placed before court. The Multiplicand of Kshs 15,000 per month and a multiplier of 25 years was fair and the award of Kshs 3,000,000 was fair and reasonable under the circumstances. Reliance was place on the cases of Wilson Sanya vs David Winga Odongo(2018) eKLR, Abson Motors & Others vs Sineima Katsao (2016) eKLR.

21. To buttress the point of Double Compensation, it was submitted that the court did not err in awarding under the two Acts but only erred in awarding figures that were inordinately low. Reliance was placed in the cases of Hellen Waruguru Waweru (suing as the Legal Representative of Peter Waweru Menja( Deceased- vs Kiarie Shoes Stores Limited Nyeri Civil Appeal 22 0f 2014, David Kahuruka Gitau & Another vs Nancy Ann Wathithi Gitau & another [2016] eKLR.

22. It was submitted that on special damages, the award of Kshs 122, 500 should not be disturbed as the same were proved.

23. The Respondent urged the court to dismiss the Appeal and they be awarded the costs of the Appeal.

Determination 24. The Court considered the Memorandum of Appeal, the Trial Court record and the submissions of the parties in this Appeal.

25. This is a 1st appellate court and as aptly stated in the case of Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA 123 this court should evaluate and/or assess the evidence on record as follows:-“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

26. From the Memorandum of Appeal, the Appellant only takes issue with quantum. Liability is not contested. The Appellants contends that the awards for quantum were inordinately high in the circumstances and prays for review of the same. The quantum was awarded under different headings which the court shall look at singly.

27. The Court also notes the award under pain and suffering was not contested by the Appellants.

28. The Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

29. It was therefore held by the same Court in Sheikh Mustaq Hassan vs. Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457 that:“The appellate court is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect…A member of an appellate court when naturally and reasonably says to himself “what figure would I have made?” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other Judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own…”

30. Similarly, in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988- 92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held that:“In effect, the Court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”

Loss Of Dependency 31. As regards Loss of dependency,the principles which ought to guide a court in awarding damages in fatal accident claims under the head of loss of dependency was dealt with by Ringera, J (as he then was) in Grace Kanini vs. Kenya Bus Services Nairobi HCCC No. 4708 of 1989 where it was held that:“The Court must find out as a fact what the annual loss of dependency is and in doing so, it must bear in mind that the relevant income of the deceased is not the gross earnings but the net earnings. There is no conventional fractions to be applied, as each case must depend on its own facts. When a court adopts any fraction that must be taken as its finding of fact in the particular case and in considering the reasonable figure, commonly known as the multiplier, regard must be considered in the personal circumstances of both the deceased and the defendant such as the deceased’s age, his expectation of working years, the ages of the dependants and the length of the dependant’s expectation of dependency. The chances of life of the deceased and the dependants should also be borne in mind. The capital sum arrived at after applying the annual multiplicand to the multiplier should then be discounted by a reasonable figure to allow for legitimate concerns such as the widow’s probable remarriage and the fact that the award will be received in a lump sum and if otherwise invested, good returns can be expected.”

32. The same Judge in Beatrice Wangui Thairu –vs- Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No.1638 of 1988 (unreported), held at page 248 that:“The principles applicable to an assessment of damages under the Fatal Accidents Act are all too clear. The court must in the first instance find out the value of the annual dependency. Such value is HCCA 251. 13 Page 10 usually called the multiplicand. In determining the same, the important figure is the net earnings of the deceased. The court should then multiply the multiplicand by a reasonable figure representing so many years purchases. In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants. The sum thus arrived at must then be discounted to allow the legitimate considerations such as the fact that the award is being received in a lump sum and would if wisely invested yield returns of an income nature.”

33. As for what the Court ought to consider in determining the appropriate multiplier,In the case of Henry Waweru Karanja & Another vs. Teresiah Nduta Kagiri (suing as the legal representative of the estate of Francis Wainaina Ng’ang’a (deceased) [2107] eKLR the court expressed itself as follows concerning the issue of proof of dependency:“20. I need to dispose off several aspects of the appeal here quickly. First, the Appellant says that the Plaintiff did not prove that they are entitled to any sums for loss of dependency or lost years because she did not prove that she was the mother of the deceased. I do not agree that the Respondent did not prove that she was entitled to this head of damages. She testified quite straightforwardly that she was the mother of the deceased and that the deceased used to give her Kshs. 10,000 every month. In cross examination, all the Appellant’s counsel did was to ask her if she had come to court with a letter from the Chief to prove that she was, indeed, the mother to the deceased. The Respondent responded in the negative. The lack of a Chief’s letter is not an automatic proof of the negative: that the Respondent is not the mother of the deceased. Indeed, her oral testimony, believed by the Learned Magistrate was sufficient to prove that she was the mother. 21. The same is true about the proof of dependency. She testified that the Deceased used to give her Kshs. 10,000 per month. It is true that she did not produce any document to prove this – but the law does not say that a document must be produced to prove such an assertion. The law demands that each allegation must be proved HCCA 50. 18 Page 18 on a balance of probabilities. Here, the Respondent testified that she received Kshs. 10,000 per month from the Deceased. She was not cross-examined on the claim. The Learned Trial Magistrate was therefore entitled to make a finding that that was the amount of money she received from the Deceased. In any event, the Learned Trial Magistrate used the sum of Kshs. 10,000/= not as the amount the Deceased used to give to the Respondent but as the total earnings per month for the Deceased.”

34. The Court in Leonard O. Ekisa & another vs. Major K. Birgen [2005] eKLR stated as follows:“Dependency is a matter of fact. It need not be proved by documentary evidence. In an African family setting, it is not unusual for parents to be dependants. There is no social welfare system that caters for old people in this country...”Section 4(1) of the Fatal Accidents Act provides as follows:-“Every action brought by virtue of the provisions of this Act shall be for the benefit of the wife, husband, parent and child of the person whose death was so caused…”Section 2 (1) of the same Act provides:-“child” means a son, daughter, grandson, granddaughter, stepson or stepdaughter;

35. The Plaintiff stated that she and the children and the deceased mother depended on the deceased for food, school fees and other needs.t is therefore clear that even in the absence of evidence that the parents depended on the deceased, the Court is not barred by that mere fact from awarding damages to the parents as long as there is evidence on record that the parents were either being assisted by the deceased or that they expected some assistance from the deceased. That is my understanding of the decision in Henry Waweru Karanja & Another vs. Teresiah Nduta Kagiri (suing as the legal representative of the estate of Francis Wainaina Ng’ang’a (deceased) [2107] eKLR where the court expressed itself as follows concerning the issue of proof of dependency:“20. I need to dispose off several aspects of the appeal here quickly. First, the Appellant says that the Plaintiff did not prove that they are entitled to any sums for loss of dependency or lost years because she did not prove that she was the mother of the deceased. I do not agree that the Respondent did not prove that she was entitled to this head of damages. She testified quite straightforwardly that she was the mother of the deceased and that the deceased used to give her Kshs. 10,000 every month. In cross examination, all the Appellant’s counsel did was to ask her if she had come to court with a letter from the Chief to prove that she was, indeed, the mother to the deceased. The Respondent responded in the negative. The lack of a Chief’s letter is not an automatic proof of the negative: that the Respondent is not the mother of the deceased. Indeed, her oral testimony, believed by the Learned Magistrate was sufficient to prove that she was the mother.21. The same is true about the proof of dependency. She testified that the Deceased used to give her Kshs. 10,000 per month. It is true that she did not produce any document to prove this – but the law does not say that a document must be produced to prove such an assertion. The law demands that each allegation must be proved on a balance of probabilities. Here, the Respondent testified that she received Kshs. 10,000 per month from the Deceased. She was not cross-examined on the claim. The Learned Trial Magistrate was therefore entitled to make a finding that that was the amount of money she received from the Deceased. In any event, the Learned Trial Magistrate used the sum of Kshs. 10,000/= not as the amount the Deceased used to give to the Respondent but as the total earnings per month for the Deceased.”

36. Therefore, the law recognizes dependency of child/children of the deceased without any age cap provided. In this case, during trial birth certificates of the 2 children were produced. They are adults now. In today’s world and prevailing challenges, it is reasonable to expect adult children depending on aging parents for support.

37. In the circumstances the Trial Magistrate considered Kshs.15,000/- as pleaded and the amount was /is not excessive.

38. The Appellant contested the quantum and with regard to the multiplicand cannot be said to have adopted a multiplicand.

39. The Plaintiff testified that the deceased was the deceased was 35 years old at the time of his demise and earned Kshs. 15,000 per month from his businesses. There is no evidence to the contrary with regard to the deceased’s earnings and therefore the ratio of 2/3 and a multiplicand of Kshs. 15,000 and a multiplier of 25 years is reasonable.

40. As for the dependency ratio, I agree that the application of 2/3rds was not justifiable in the circumstances. The reasonable ratio could not have been more than ½ since the deceased had been taking care of his wife and children. It is therefore my view the award for loss of dependency ought to have been as hereunder: 25 x 12 x 15,000 x 1/2 = Kshs 2,250,000. 00. I reduce the award for loss of dependency accordingly. In the premises, the appeal is allowed to that extent only.

41. An issue was taken with the award for loss of expectation of life. Consideration the past authorities in respect of that award, it is my view that the sum of Kshs 200,000. 00 is not manifestly excessive in the circumstances.

42. As regards the double award, as stated in Marko Mwenda vs. Bernard Mugambi & Another (supra) the capital sum arrived at by applying the multiplicand to the multiplier is then discounted to allow for the fact of receipt in a lump sum at once rather than periodical payments throughout the expected period of dependency. The object of the entire exercise is to give the dependants such an award as would when wisely invested be able to compensate the dependants for the financial loss suffered as a result of the death of the deceased.

43. Similarly, the Court of Appeal in Eliphas Mutegi Njeri & Another vs. Stanley M’mwari M’atiri Civil Appeal No. 237 of 2004 held that:“As regards the failure of the Superior Court to take into consideration the award under the Fatal Accidents Act when arriving at the award under the Law Reform Act the principle is that the award under the Fatal Accidents Act has to be taken into account when considering awards under the Law Reform Act for the simple reason that the dependants under the Law Reform Act are the same beneficiaries of the estate of the deceased in the latter Act. Although section 2(5) of the Law Reform Act states that the damages under this Act are in addition to those made under the Fatal Accidents Act the fact that the same parties benefit from awards under both Acts cannot be ignored. If this is not done then there is a danger of duplication of awards…Accordingly, the award of Kshs 890,000/- reduced by Kshs 100,000/- to Kshs 790,000/-.”

44. The Court of Appeal (Waki, Nambuye and Kiage JJA) in the case of Mombasa Maize Millers Limited vs. Chrispine Asoyo (Suing as Personal Representative/ Administrator of the Estate of Martina Asoyo Akinyi) [2018] eKLR similarly stated that:“This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate are the same, and consequently the claim for lost years and dependency will go to the same person. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise… The words "to be taken into account" and "to be deducted" are two different things. The words in Section 4 (2) of the Fatal Accidents Act are "taken into account". This section says what should be taken into account and not necessarily deducted. It is sufficient if the judgment of the lower court shows that in reaching the figure awarded under the Fatal Accidents Act the trial judge bore in mind or considered what he had awarded under the Law Reform Act for the non-pecuniary loss. There is no requirement in law or otherwise for him to engage in a mathematical deduction."

45. What is required of the Court is therefore not to deduct one award from the other but to consider the possibility of double compensation. I see no reason to interfere with the award on that score.

Disposition1. In the end, the Court upholds award on liability and finds on appeal as follows;a.General damages for pain and suffering ……………………………… Kshs 10,000/-b.Loss of expectation of life ……………….Kshs 200,000/-c.Loss of dependency ……………………. Kshs 2,250,000/-d.Special Damages Kshs 122,500/-TOTAL ………………………………. Kshs 2,582,500/-2. Since the Appeal is partly successful, there shall be no orders as to costs. Each party shall bear own Costs.3. It is so ordered

JUDGMENT DELIVERED DATED SIGNED IN OPEN COURT IN MACHAKOS ON 24TH OCTOBER, 2023 (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGEIn The Presence Of:No Appearance - For The AppellantMs Kavita - For The RespondentsGeoffrey/patrick – Court Assistant(s)